Legal shorts for February 10, 2015: Legal system 3.0, post-Alice patentability guidelines, and instructing clients to remove their social-media posts
Welcome to Legal Industry 3.0. Things move slowly in the world of jurisprudence -- some may say glacially. But even the legal profession is being turned upside-down by Internet technologies. In a February 5, 2015, article on Stanford Lawyer, Oliver R. Goodenough cautions legal types to prepare for the next phase of the ongoing upheaval, which Goodenough labels "computational jurisprudence 3.0."
In version 1.0, "technology empowers the current human players within the current system." The process doesn't become disruptive until version 2.0, when "technology replaces an increasing number of human players within the existing system." Things really start hopping when version 3.0 arrives. That's when "the power of computational technology for communication, modeling and execution permit a radical redesign, if not a full replacement, of the current system itself."
In the not-too-distant future, the legal action will be occurring not in the courtroom or law offices but in cyberspace, and the actors will be sophisticated computer programs, not lawyers and judges. The only things that won't change are the laws (much) and the clients. As Goodenough points out, this may sound like science fiction, but so did today's smart phones not so long ago.
The post-Alice patent world begins to take shape. The U.S. Supreme Court's decision last June in Alice Corp. v. CLS Bank International led to the invalidation of many business method and software patents, and a finding of unpatentability for others. The decision left many patent holders and potential patent holders scratching their heads over what constitutes an unpatentable "abstract idea."
The authors point out that initial reaction by Federal courts indicated a trend toward finding software and business methods unpatentable, but more recently it appears many software and computer inventions will pass the two-part "abstract idea" test formulated in Mayo v. Prometheus in 2012 and will be afforded patent protections by the courts.
Lawyers may instruct their clients to remove Facebook posts prior to discovery, but.... The January 27, 2015, Weekly pointed out that courts have ruled all your Facebook posts available for discovery prior to a lawsuit, even those you've marked as private via Facebook's settings. On January 23, 2015, the Florida Bar issued a Proposed Advisory Opinion that lets lawyers know that it's okay for them to instruct their clients to delete all information from their social media pages before filing suit, but only if the lawyers can do so without violating laws related to "preservation and/or spoliation of evidence." Cozen O'Connor lawyer Joseph Rich reports on the advisory in a February 4, 2015, article on the JD Supra site.
The advisory instructs lawyers to preserve "an appropriate record" of any material removed from social media by a client pre-litigation if the lawyer knows or should know that the material is relevant to the case. The Florida Bar's instructions cite several instances when lawyers and clients were sanctioned for deleting relevant information from the client's social media accounts. As usual, it's safest not to post the potentially incriminating material in the first place.
Someday Facebook and other social networks will come with a Miranda or Surgeon General-type warning: "Caution -- What you post may be used against you in a court of law."